Agreement of Limited Partnership (2003)Full Document 

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AGREEMENT OF LIMITED PARTNERSHIP

OF

WELLS OPERATING PARTNERSHIP II, L.P.


TABLE OF CONTENTS

 

ARTICLE I        DEFINED TERMS

   1

ARTICLE II        PARTNERSHIP FORMATION AND IDENTIFICATION

   8

    2.01

   Formation.    8

    2.02

   Name, Office and Registered Agent.    8

    2.03

   Partners    8

    2.04

   Term and Dissolution    8

    2.05

   Filing of Certificate and Perfection of Limited Partnership    9

    2.06

   Certificates Describing Partnership Units    9

ARTICLE III        BUSINESS OF THE PARTNERSHIP

   10

ARTICLE IV        CAPITAL CONTRIBUTIONS AND ACCOUNTS

   10

    4.01

   Capital Contributions    10

    4.02

   Additional Capital Contributions and Issuance of Additional Partnership Interests    10

    4.03

   Additional Funding    12

    4.04

   Capital Accounts    12

    4.05

   Percentage Interests    13

    4.06

   No Interest on Contributions    13

    4.07

   Return of Capital Contributions    13

    4.08

   No Third Party Beneficiary    13

ARTICLE V        PROFITS AND LOSSES; DISTRIBUTIONS

   14

    5.01

   Allocation of Profit and Loss    14

    5.02

   Distribution of Cash    16

    5.03

   REIT Distribution Requirements    17

    5.04

   No Right to Distributions In Kind    17

    5.05

   Limitations on Return of Capital Contributions    17

    5.06

   Distributions Upon Liquidation    17

    5.07

   Substantial Economic Effect    17

ARTICLE VI        RIGHTS, OBLIGATIONS AND POWERS OF THE GENERAL PARTNER

   18

    6.01

   Management of the Partnership    18

    6.02

   Delegation of Authority    20

    6.03

   Indemnification    21

    6.04

   Liability of the General Partner    22

    6.05

   Reimbursement of General Partner    23

    6.06

   Outside Activities    23

    6.07

   Employment or Retention of Affiliates    23

    6.08

   [reserved]    24

    6.09

   Title to Partnership Assets    24

    6.10

   Miscellaneous    24

 

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ARTICLE VII        CHANGES IN GENERAL PARTNER

   24

    7.01

   Transfer of the General Partner’s Partnership Interest    24

    7.02

   Admission of a Substitute or Additional General Partner    26

    7.03

   Effect of Bankruptcy, Withdrawal, Death or Dissolution of a General Partner    27

    7.04

   Removal of a General Partner    27

ARTICLE VIII        RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS

   28

    8.01

   Management of the Partnership    28

    8.02

   Power of Attorney    28

    8.03

   Limitation on Liability of Limited Partners    29

    8.04

   [reserved]    29

    8.05

   Exchange Right    29

    8.06

   [reserved]    30

ARTICLE IX        TRANSFERS AND REDEMPTIONS OF LIMITED PARTNERSHIP INTERESTS

   31

    9.01

   Purchase for Investment    31

    9.02

   Restrictions on Transfer of Limited Partnership Interests    31

    9.03

   Admission of Substitute Limited Partner    32

    9.04

   Rights of Assignees of Partnership Interests    33

    9.05

   Effect of Bankruptcy, Death, Incompetence or Termination of a Limited Partner    34

    9.06

   Joint Ownership of Interests    34

    9.07

   Redemption of Partnership Units    34

ARTICLE X        BOOKS AND RECORDS; ACCOUNTING; TAX MATTERS

   34

    10.01

   Books and Records    34

    10.02

   Custody of Partnership Funds, Bank Accounts    35

    10.03

   Fiscal and Taxable Year    35

    10.04

   Annual Tax Information and Report    35

    10.05

   Tax Matters Partner, Tax Elections, Special Basis Adjustments    35

    10.06

   Reports to Limited Partners    36

ARTICLE XI        AMENDMENT OF AGREEMENT; MERGER

   36

ARTICLE XII        GENERAL PROVISIONS

   37

    12.01

   Notices    37

    12.02

   Survival of Rights    37

    12.03

   Additional Documents    37

    12.04

   Severability    37

    12.05

   Entire Agreement    37

    12.06

   Pronouns and Plurals    37

    12.07

   Headings    38

    12.08

   Counterparts    38

    12.09

   Governing Law    38

EXHIBIT A

   40

EXHIBIT B

   41

 

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AGREEMENT OF LIMITED PARTNERSHIP

OF

WELLS OPERATING PARTNERSHIP II, L.P.

 

RECITALS

 

Wells Operating Partnership II, L.P. (the “Partnership”) was formed as a limited partnership under the laws of the State of Delaware, pursuant to a Certificate of Limited Partnership filed with the Office of the Secretary of State of the State of Delaware effective as of July 17, 2003. This Agreement of Limited Partnership is entered into this      day of                     , 2003 between Wells Real Estate Investment Trust II, Inc., a Maryland corporation (the “General Partner”) and the Limited Partner(s) set forth on Exhibit A hereto (the “Agreement”).

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing, of mutual covenants between the parties hereto, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

DEFINED TERMS

 

The following defined terms used in this Agreement shall have the meanings specified below:

 

Act” means the Delaware Revised Uniform Limited Partnership Act, as it may be amended from time to time.

 

Additional Funds” has the meaning set forth in Section 4.03 hereof.

 

Additional Securities” means any additional REIT Shares (other than REIT Shares issued in connection with an exchange pursuant to Section 8.05 hereof) or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase REIT Shares, as set forth in Section 4.02(a)(ii).

 

Administrative Expenses” means (i) all administrative and operating costs and expenses incurred by the Partnership, (ii) those administrative costs and expenses of the General Partner, including any salaries or other payments to directors, officers or employees of the General Partner, and any accounting and legal expenses of the General Partner, which expenses, the Partners have agreed, are expenses of the Partnership and not the General Partner, and (iii) to the extent not included in clause (ii) above, REIT Expenses; provided, however, that Administrative Expenses shall not include any administrative costs and expenses incurred by the General Partner that are attributable to Properties or partnership interests in a Subsidiary Partnership that are owned by the General Partner directly.


Advisor” means Wells Capital, Inc., a Georgia corporation.

 

Affiliate” means, (i) any Person that, directly or indirectly, controls or is controlled by or is under common control with such Person, (ii) any other Person that owns, beneficially, directly or indirectly, 10% or more of the outstanding capital stock, shares or equity interests of such Person, or (iii) any officer, director, employee, partner or trustee of such Person or any Person controlling, controlled by or under common control with such Person (excluding trustees and persons serving in similar capacities who are not otherwise an Affiliate of such Person). For the purposes of this definition, “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities or partnership interests or otherwise.

 

Agreed Value” means the fair market value of a Partner’s non-cash Capital Contribution as of the date of contribution as agreed to by such Partner and the General Partner. The names and addresses of the Partners, number of Partnership Units issued to each Partner, and the Agreed Value of non-cash Capital Contributions as of the date of contribution is set forth on Exhibit A.

 

Agreement” means this Agreement of Limited Partnership.

 

Articles Of Incorporation” means the Articles of Incorporation of the General Partner filed with the Maryland State Department of Assessments and Taxation, as amended or restated from time to time.

 

Capital Account” has the meaning provided in Section 4.04 hereof.

 

Capital Contribution” means the total amount of cash, cash equivalents, and the Agreed Value of any Property or other asset contributed or agreed to be contributed, as the context requires, to the Partnership by each Partner pursuant to the terms of the Agreement. Any reference to the Capital Contribution of a Partner shall include the Capital Contribution made by a predecessor holder of the Partnership Interest of such Partner.

 

Cash Amount” means an amount of cash per Partnership Unit equal to the Value of the REIT Shares Amount on the date of receipt by the General Partner of a Notice of Exchange.

 

Certificate” means any instrument or document that is required under the laws of the State of Delaware, or any other jurisdiction in which the Partnership conducts business, to be signed and sworn to by the Partners of the Partnership (either by themselves or pursuant to the power-of-attorney granted to the General Partner in Section 8.02 hereof) and filed for recording in the appropriate public offices within the State of Delaware or such other jurisdiction to perfect or maintain the Partnership as a limited partnership, to effect the admission, withdrawal, or substitution of any Partner of the Partnership, or to protect the limited liability of the Limited Partners as limited partners under the laws of the State of Delaware or such other jurisdiction.

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